Everyone agrees that Shawnee County District Attorney Chad Taylor withdrew from the U.S. Senate race in Kansas.
The question is, did the Democrat do it the right way and say the right words?
The Kansas Supreme Court began exploring that issue Tuesday as it weighed a request to remove Taylor from the ballot, a decision that could boost independent Greg Orman’s chances of unseating Republican U.S. Sen. Pat Roberts.
The country is watching the race because it could decide whether Republicans gain control of the Senate.
The court has not said when it will deliver a decision. But a deadline for sending out ballots to overseas voters is Saturday.
A new poll out Tuesday morning showed Orman leading Roberts 41 to 34 percent, with 4 percent for Libertarian candidate Randall Batson. The Public Policy Polling survey showed Taylor drawing 6 percent of the vote, with 15 percent undecided.
Conventional wisdom holds that Orman and Taylor are splitting the anti-incumbent, anti-Roberts vote and that the independent candidate would benefit most if the Democrat’s name were scrubbed from the ballot. Consequently, Republicans have mostly argued that Taylor must stay on the ballot.
The court considered Taylor’s request to be removed from the ballot in oral arguments Tuesday morning. Republican Secretary of State Kris Kobach opposes the request, saying it wasn’t legally sufficient.
The case turns on whether Taylor’s letter withdrawing from the race complied with a 1997 law requiring candidates to declare they are “incapable” of serving if they’re elected. The law was passed with the intent of stopping candidates from abusing the political process by filing and then suddenly withdrawing.
Taylor’s withdrawal letter referenced the law. But Kobach contends Taylor needed to state the specific language of the law or provide background indicating why he couldn’t serve in the Senate.
“All he had to do was recite the magic words: ‘I am incapable of serving and fulfilling the elected duties of office if elected,’” Kobach said after the hearing.
But the justices seemed to struggle over how much discretion Kobach had to decide what constitutes a proper declaration.
They questioned why, in some cases, candidates were able to withdraw from races without proper notarization but in this case Kobach was taking a hard line.
Some withdrawals were notarized but did not include the acknowledgment declaring it was done in the notary’s presence.
“The Legislature put requirements into statute, and you guys are deciding whether to comply or not on an ad hoc basis,” said Justice Dan Biles. “It’s not consistent, and it’s not even in compliance with state law.”
The justices zeroed in on a letter from Kansas State University student Miranda Rickel, who withdrew from a Kansas House race Aug. 28.
Rickel didn’t specifically say that she would be incapable of serving. Rather, she cited various reasons why a campaign would interfere with her education. Yet in that case, Kobach allowed her to pull out of the race, leaving only a Republican vying for that seat in the Legislature.
Justice Carol Beier questioned Kobach’s legal team about apparent inconsistent applications of the law, pointing to the improper notarizations.
“Does the secretary have the discretion to choose which parts of the law must be complied with and which must be dispensed with?” Beier asked.
Ed Greim, representing Kobach, sidestepped that question. He said the secretary has the discretion to decide whether someone has sufficiently declared themselves incapable of serving.
At a news conference later, Kobach said that Rickel’s letter declared facts that indicated she would not be able to serve if she were elected to office.
“You can say the magic words or state facts that are tantamount to such a declaration,” he said.
The Supreme Court is under extreme time pressure to decide the case. The state has to print the general election ballots Thursday so they can be mailed to overseas military personnel by the federal deadline of Saturday.
Kobach indicated that he would need to get approval from the U.S. Justice Department to extend the deadline past Saturday.
The case could extend well past any decision rendered by the court. Kobach said the law requires the Democratic Party to name a replacement. Kobach vowed to return to court if the party refuses to name a replacement.
The state Democratic Party wouldn’t comment on the prospect of naming a replacement.